California Legislature Moves to Allow Gig Workers to Engage in Collective Bargaining After California Appellate Court Accepted the Argument in Our Amicus Brief in the Prop. 22 Case That Prop. 22 Could Not Bar Legislature from Doing So

direct democracy

This is gratifying. Back in 2022, I filed an amicus brief in the California Court of Appeal with Professors Joey Fishkin and Franita Tolson, along with co-counsel Kathryn Eidmann and Mark Rosenbaum of Public Counsel. We did not take a position on the main question in the lawsuit: whether an initiative could mandate that California gig workers like Uber drivers could be treated as independent contractors for purposes of California workers’ compensation law. Instead, we focused only on the provision that would bar the California legislature from passing a law allowing gig workers to organize to engage in collective bargaining.

From our brief:

Amicus California Election Law Professors has reviewed the parties’ briefing and writes to address a single issue on which the parties disagree: whether a voter initiative legislating on one subject may constitutionally hamstring the ability of the California Legislature to pass legislation on a different but related subject.

If this court approves the “amendment” limitation on the Legislature’s lawmaking power contained in Proposition 22—a limitation that appears to be unprecedented in the history of California initiatives—it will work mischief and provide a roadmap for future initiatives to upset the delicate balance between legislative powers given to the People of the State of California and those given to the Legislature. It would allow a bait and switch in which voters pass an initiative on Subject A but the fine print will unconstitutionally prevent or limit the Legislature’s ability to legislate on Subject B. It will allow the trampling of political and civil rights without recourse to otherwise-permissible legislation. 

Thus, if this Court approves the structure of this initiative, we can expect something like an initiative cutting certain insurance rates but containing a limitation on “amendments” making it nearly impossible for the Legislature to impose penalties for unfair insurance practices, or an initiative creating affordable housing opportunities but containing a limitation on “amendments” preventing the Legislature from overriding zoning rules in California cities. 

In Proposition 22, California voters were told that initiative approval meant treating “gig workers” such as Uber drivers as independent contractors rather than employees for purposes such as workers’ compensation laws. But the substance of the initiative was silent on whether gig workers could have someone represent them collectively to do things like bargaining over working conditions. No provisions in the initiative limit collective bargaining and the initiative’s statement of purposes says absolutely nothing about collective bargaining rights. And yet deep in Proposition 22’s fine print (on the bottom of page 8 to the top of page 9 of a 10-page measure), in the guise of providing limitations on “amendments,” the measure bars the Legislature from enacting any law governing the collective bargaining rights of gig workers unless seven-eighths of the Legislature agrees, a nearly insurmountable margin for any controversial measure. 

If Proposition 22’s proponents wanted to bar entities from assisting gig workers in collective bargaining, they should have included a provision doing so in the substantive provisions of the initiative. Perhaps the proponents did not do so because a proposal to prevent collective action by gig workers could have been politically unpopular, making the measure less likely to pass. 

So proponents—leading ride-share and app companies who benefit financially from a non-organized workforce—tried instead to achieve the same aims indirectly by hamstringing the Legislature from passing collective bargaining legislation related to gig workers. They styled separate legislation on the topic of gig workers’ collective bargaining rights as an “amendment” to Proposition 22, and then subjected such an “amendment” to an onerous seven-eighths supermajority requirement. Such a structure in a voter initiative appears unprecedented among California initiatives. 

As explained below, the structure of Proposition 22 violates the separation of powers contained in the California Constitution. Although Article II, section 10(c) of the Constitution gives initiative proponents the ability to say that the Legislature may not offer amendments (or must meet supermajority requirements to offer amendments) on the same subject as that of the initiative—a requirement necessary to ensure that the Legislature does not pass laws nullifying provisions in voter-approved initiatives—the Constitution does not give initiative proponents the ability to say that the Legislature may not offer legislation (or must meet supermajority requirements to offer legislation) on a different but potentially related subject. 

This Court should hold that the portion of Proposition 22 requiring seven-eighths legislative approval for laws regulating the collective bargaining rights of gig workers is unconstitutional. Because the drafters of Proposition 22 engaged deliberately in a manipulation of the initiative process, this Court should hold invalid all of Proposition 22 despite its severability clause. Without such a strong remedy, there will be no penalty for trying this gambit again; the worst that will happen is that the offending “amendment” will be excised from the measure. At the very least, this Court should declare the portion of the measure limiting legislative power unconstitutional and unenforceable. 

A ruling against the “amendment” gambit contained in Proposition 22 will ensure that initiative proponents cannot limit legislative power through the back door. It will confirm that legislatures retain the authority to pass legislation on topics that are related to, but distinct from, those an initiative actually covers. In that way, it will maintain the proper balance between the People and the Legislature in passing legislation. 

The appeals court agreed with us, and the Prop. 22 proponents did not appeal from this aspect of the intermediate court’s ruling. When the case went to the California Supreme Court, the court upheld the basic part of the initiative, but did not disturb this ruling of the Court of Appeal.

And how, we can see the fruits of this argument, via the Los Angeles Times:

Gov. Gavin Newsom and California lawmakers on Friday announced a landmark deal with Uber and Lyft to allow hundreds of thousands of rideshare drivers to unionize and bargain collectively while still being classified as independent contractors.

The compromise between labor unions and the Silicon Valley companies, backed by Newsom, Assembly Speaker Robert Rivas and Senate Pro Tem Mike McGuire, would advance a collective bargaining bill through the Legislature along with a bill backed by Uber and Lyft that would significantly reduce the companies’ insurance requirements.

The deal is a major development in the years-long tussle between organized labor and Silicon Valley over rights for independent contractors…..

The deal marks a new chapter in nearly a decade of tension between technology companies and state lawmakers over the employment status of the tens of thousands of Californians who do gig work for app-based companies.

“This moment has been a long fight for over a decade in the making,” said Tia Orr, the executive director of SEIU California.

After the California Legislature in 2019 rewrote employment law in 2019, clarifying and limiting when businesses can classify workers as independent contractors, Uber and Lyft went to the ballot in California to exempt their drivers.

When California voters passed Proposition 22, the ballot measure funded by Uber and Lyft, in 2020, drivers were classified as independent contractors and, under federal law, do not have the right to organize. Prop. 22 also explicitly barred drivers from collectively bargaining over their compensation, benefits and working conditions.

But SEIU California argued that court decisions over Prop. 22 left an opening for the state Legislature to create a process for drivers to unionize.

Earlier this year, Assemblymember Buffy Wicks (D-Oakland) and Marc Berman (D-Menlo Park) introduced the collective bargaining bill, AB 1340, which Uber and Lyft initially opposed.

The bill allows drivers to negotiate their pay and other terms of their agreements with the companies and exempts workers from the state and federal antitrust laws that normally prohibit collective action by independent contractors.

Under federal law, employees in the U.S. can unionize by holding an election or reaching a voluntary agreement with their employers for a specific union to represent them.

The process for California Uber and Lyft drivers would be somewhat different. The bill says drivers can select a bargaining representative by collecting signatures from at least 10% of active drivers, then petitioning the state’s Public Employment Relations Board for a certification…..

Share this:

“Redistricting Push Creates Chaos for Incumbents in Both Parties”

redistricting

NYT:

When President Trump set out to force a gerrymander in Texas that would help Republicans keep control of the closely divided House, he argued it was a simple matter of fairness.

“We are entitled to five more seats,” the president said this month.

He got what he wanted from Texas, where the governor on Friday signed a redistricting plan. But the consequences may not be so simple.

With California Democrats immediately retaliating with their own re-engineering that could potentially swing up to five seats in the opposite direction, a redistricting arms race is quickly spreading across the country. That has become a major headache for incumbent members of Congress in both parties, who are concerned about changes to districts they have spent years — some of them decades — figuring out how to win.

On paper, the changes that have been approved or are under discussion could potentially give Republicans a leg up of six to seven seats in what is expected to be an uphill fight to keep control of the House. But redistricting can deliver unpredictable results, and it is uncertain whether this one will ultimately pan out the way either party hopes.

What is clear is that it has created confusion in the already volatile battle for congressional power, with no clear outcome guaranteed for Republicans or Democrats.

“They’re clearly counting on Democrats not forcefully responding,” Representative Hakeem Jeffries, Democrat of New York and the minority leader, said in an interview. “We are going to unleash righteous hellfire on them until the cheating scheme ends.”

Some Republicans believe it never should have started.

“The simplest solution here is just to say, ‘Enough is enough, and let’s not do that in any state,’” said Representative Kevin Kiley of California, who is one of five Republican members of Congress in the state at risk of losing their seats if voters approve Democrats’ redistricting plan this fall.

“It’s a pretty tortured logic to say we ought to do something worse because they’re doing something bad,” Mr. Kiley said of California Democrats’ plan, which aims to counter Texas Republicans’ partisan redistricting effort. “That being said, I don’t like what’s going on in Texas. I don’t think that should be happening anywhere.”…

Share this:

“Trump Says He Will Sign Executive Order Mandating Voter I.D.” (And No, He Doesn’t Have the Power to Mandate Voter ID)

authoritarian threats in US, election administration

NYT:

President Trump said late Saturday that he would issue an executive order to require voter identification for all U.S. elections, a continuation of his efforts to overhaul the nation’s election laws, which he has long attacked and falsely blamed for his 2020 election loss.

In a post on Truth Social, Mr. Trump said, “Voter I.D. Must Be Part of Every Single Vote. NO EXCEPTIONS! I Will Be Doing An Executive Order To That End!!!” He did not provide further details about the order.

He also reiterated his intention to restrict mail-in voting except for those who are very ill or serving far away in the military, as well as his opposition to voting machines.

The announcement signals Mr. Trump’s latest effort to influence election laws using an executive order, something that he has dubious authority to do. The Constitution gives the president no explicit authority to regulate elections. Rather, it gives states the power to decide the rules of elections, oversee voting and try to prevent fraud. It gives Congress the ability to override state laws on voting. Any executive order from the president regarding elections is likely to see immediate legal challenges….

Share this:

“If Redistricting Goes as Expected, Which Party Will Come Out Ahead?”

redistricting

Nate Cohn for the NYT:

The next phase of the redistricting war is starting to come into focus.

Indiana, Missouri, Ohio and perhaps Florida — all Republican-controlled states — seem likely to join Texas and California in attempting to redraw their congressional maps, according to my New York Times colleagues. By their tally, Republicans could carve out up to seven more House seats where they would be favored to win.

It’s too soon to be sure if these states will follow through, let alone whether it would mark the end of this cycle’s redistricting battles. Other states could join; a legal challenge to Utah’s map and a challenge to Section 2 of the Voting Rights Act also loom. But suppose that this is where the redistricting war goes next, and where it ends. If so, how much would the new maps tilt the playing field toward Republicans?

Ultimately, the most important question is whether redistricting prevents the party that wins the national popular vote from winning control of the House. If the popular vote winner is still likely to prevail, then gerrymandering, however odious, hasn’t necessarily left one party at an undemocratic disadvantage overall.

By this measure, the House map was fundamentally fair in 2024: Despite plenty of gerrymandering, the winner of the popular vote was reasonably likely to win the most seats. But if the new maps are enacted in all of these states, Democrats will need to win the national popular vote by two or three percentage points to be favored to retake the House, according to projections based on recent congressional and presidential election results.

A two-to-three-point structural advantage for the G.O.P. is meaningful, but pretty modest. With Democrats leading by four points in the national generic ballot polls today, the party would still be favored to win next year’s midterm election. The Republicans wouldn’t stand much of any chance at all of surviving a so-called “wave” election, like in 2018, when Democrats won the House popular vote by seven points.

But while Democrats would be favored if the election were held tomorrow, the race for the House would be significantly more competitive on the new maps. Even if the Democrats won, the likeliest outcome would be a piecemeal seat-by-seat battle in which control of the chamber would come down to a fairly small number of seats. The race might not be called for days. Democrats wouldn’t have much margin for error: A few mediocre Democratic recruits, some ill-timed retirements, an unexpected demographic shift or even plain bad luck in contests with razor-thin margins could be enough to give Republicans control even if the G.O.P. loses the popular vote by a modest margin….

Share this:

Federal Court in Kohls v. Bonta, in Striking Down California Deep Fake Law on First Amendment Grounds, Sees Constitutional Path for More Narrowly Tailored Laws Aimed at False Statements About When, Where, and How People Vote

campaigns, First Amendment theory

Via Eugene Volokh (who is cited in the court’s opinion), here’s a snippet from Kohls v. Bonta:

AB 2839 regulates a broad spectrum of election-related content that is “materially deceptive” and permits any recipient of this content to sue for general or special damages. Cal. Elec. Code §§ 20012(b)(1), 20012(d). AB 2839 defines “materially deceptive” content as “audio or visual media that is intentionally digitally created or modified, … such that the content would falsely appear to a reasonable person to be an authentic record of the content depicted in the media.” AB 2839 includes exceptions for candidates who make and share deepfake content of themselves and for satire or parody. In both these cases, the content must include a disclaimer that meets AB 2839’s formatting requirements and must state that the content has been digitally manipulated….

The Court finds that AB 2839 discriminates based on content, viewpoint, and speaker and targets constitutionally protected speech.

The Court’s preliminary injunction Order recognized that AB 2839 was likely unconstitutional because it was content-based. By its terms, AB 2839 prohibits “materially deceptive” (defined as content that would falsely appear to a reasonable person to be an authentic record) audio or visual communications that portray a candidate or elected official doing or saying things he or she didn’t do or say and that are likely to harm a candidate’s reputation or electoral prospects. The statute also punishes such altered content that depicts an “elections official” or “voting machine, ballot, voting site, or other property or equipment” that is “reasonably likely” to falsely “undermine confidence” in the outcome of an election contest. As evidenced by the statutory language, AB 2839 facially regulates based on content because the “law applies to particular speech because of the topic” —a political candidate, elected official, elections official, ballot, or voting mechanism. Moreover, it delineates acceptable and unacceptable speech based on its purported truth or falsity meaning that non-materially deceptive content is excluded. See Order at 11.

On top of the content-based distinctions, AB 2839 regulates speech based on viewpoint and speaker. The state law only punishes content that could “harm” a candidate’s electoral prospects or content that could “undermine confidence” in the outcome of an election while leaving positive representations unregulated. In other words, materially deceptive content that helps a candidate or promotes confidence would not be subject to penalty under AB 2839….

Moreover, AB 2839 also engages in speaker-based discrimination because the law imposes different obligations on different speakers depending on who they are. Under AB 2839, candidates posting about themselves, broadcasters, and internet websites are subject to more lenient rules while other speakers, such as Plaintiffs, are categorically barred. Candidates and broadcasters can post “materially deceptive” content as long as they attach disclaimers. Additionally, broadcasters and internet sites are exempt from “general or special damages.” AB 2839 treats different speakers dissimilarly, subjecting certain individuals to stricter rules and other speakers to more lenient rules. All together, these content, viewpoint, and speaker-based distinctions at minimum trigger strict scrutiny….

Attempting to avoid the content, viewpoint, and speaker- based problems with AB 2839, Defendants analogize the statute to narrow categories of historically recognized exceptions to the First Amendment such as defamation or fraud…. However, AB 2839 goes beyond these historical categories. For example, the statute diverges from defamation law because it proscribes content that is merely “reasonably likely” to cause harm, which is speculative and prophylactic rather than remedial or concrete. Moreover, the statute also goes beyond reputational harms to include amorphous harms to the “electoral prospects” of a candidate.

So too do AB 2839’s regulations go beyond the definition of fraud because unlike fraud, AB 2839 does not require reliance or actual injury. See United States v. Alvarez (2012) (Breyer, J., concurring). California responds that falsehoods “meant to deceive viewers and manipulate voters to change their voting behavior” do cause legally cognizable harm, but intent to “deceive and manipulate” alone is not sufficient under Alvarez, which recognized that even knowing falsehoods are constitutionally protected….

Notably, the most significant manner in which AB 2839 goes beyond historically recognized exceptions to the First Amendment is by deputizing a much more expansive category of plaintiffs. Unlike defamation or other tort remedies that limit plaintiffs to persons actually harmed, the category of plaintiffs AB 2839 cognizes is almost boundless because it allows the government as well as any recipient of materially deceptive content to “seek injunctive or other equitable relief.” Plus, these recipients can seek “general or special damages” and “attorney’s fees and costs,” even against a person who merely “republishe[s]” prohibited content. Allowing almost any person to file a complaint creates the “real risk” of malicious lawsuits that could chill protected speech. Susan B. Anthony List v. Driehaus (2014).

Rather than targeting content that procures tangible harms or materially benefits a speaker, AB 2839 attempts to stifle speech before it occurs or actually harms anyone as long as it is “reasonably likely” to do so and it allows almost anyone to act as a censorship czar….

[S]trict scrutiny is the appropriate standard for a content-based restriction that implicates political expression like AB 2839…. To withstand strict scrutiny, AB 2839 must advance a compelling state interest through the least-restrictive means possible….

While the Court acknowledges that California may have a compelling interest in protecting election integrity, the tools it deploys to achieve its interest must be the least restrictive means of achieving such goal when significant speech issues are at stake. As Plaintiffs argue, the most glaring issue with AB 2839 is that the statute is not narrowly tailored because it captures even constitutional deepfakes and all “materially deceptive content.” The First Amendment does not “permit speech-restrictive measures when the state may remedy the problem by implementing or enforcing laws that do not infringe on speech.” “Because restricting speech should be the government’s tool of last resort, the availability of obvious less-restrictive alternatives renders a speech restriction overinclusive” and unconstitutional.

As the Court previously recognized in its preliminary injunction Order, existing statutory causes of action, including “privacy torts, copyright infringement, or defamation already provide recourse to public figures or private individuals whose reputations may be afflicted by artificially altered depictions peddled by satirists or opportunists on the internet.” Indeed, several other narrower constructions might allow the statute to align with historically recognized First Amendment exceptions. For instance, California could limit AB 2839’s reach to false speech that causes legally cognizable harms like false speech that actually causes voter interference, coercion, or intimidation.

California could also limit the statute’s reach to factual statements that are demonstrably false like the time, date, place, or manner of voting. See generally Eugene Volokh, When are Lies Constitutionally Protected?, 4 J. Free Speech L. 685, 704–09 (2024) (contrasting lies about “election procedures”—an area where a “narrower restriction[] might pose fewer problems” with lies about election campaigns and government officials—areas that should be “categorically immune from liability”).

Another narrower construction might be for California to limit potential plaintiffs to political candidates actually harmed by unprotected false speech, which would mirror defamation law more closely. Plaintiffs also suggest that California could encourage alternatives that are already working in the free market such as fact checking or counter speech.

California could even fund its own AI educational campaigns or form committees on combatting false or deceptive election content. While California’s expert explains that political deepfakes are “sticky” and this type of misinformation spreads too quickly for governments to counteract it, Plaintiffs have offered evidence from their expert that shows fact-checking alternatives like “Community Notes and Grok are already … scalable solutions being adopted” in the real world.. These misinformation flagging tools crowdsource identification and labeling to educate citizens rather than relying on censorship to eradicate potentially misleading content. Thus, California provides no substantial evidence that other less restrictive means of regulating deceptive election content are not feasible or effective….

This point about narrow tailoring is important, and it’s why I’ve thought the current California law is unconstitutional but a narrower law could work. I wrote about the case in my Yale Law Journal piece when the court issued a preliminary injunction, and much more in Cheap Speech on why laws that regulate false statements about when, where or how people vote are constitutional, while broader laws targeting campaign lies are likely not.

Here’s what we wrote in our Mackey amicus brief:

[Limiting Section 241’s reach to false statements about when, where or how people vote] eliminates the concerns raised in Alvarez about regulation of false speech about political campaigns and related matters because Section 241, so construed, only incidentally regulates false speech when it is part of a tortious course of conduct imposing “a legally cognizable harm.” 567 U.S. at 719. Statements about when, where, or how people vote are empirically verifiable, and punishing deliberate lies about voting mechanics and procedures does not raise issues of discretion or interpretation: saying “Democrats vote on Tuesday and Republicans vote on Wednesday,” for example, is easily proven false by reference to earlier-published election materials. It has nothing to do with the kind of contested lies warned of in Alvarez. It requires no judgment todetermine the truth of the statement about the mechanics of voting, compared to, say, an arguably false statement that the last election was “rigged.”

Share this: